Introduction
20.1The relationship between housing and adult social care ought to be seamless but is often, in practice, difficult:
•the possibility of securing accommodation under adult social care provisions can be of vital importance to homeless, vulnerable adults who are not entitled to mainstream provision (whether because of their immigration status,
1R (Clue) v Birmingham CC [2010] EWCA Civ 460, (2010) 13 CCLR 276.or earlier conduct
2R v Bristol CC ex p Penfold (1997–8) 1 CCLR 315, QBD.);
•that incoming pressure on social care resources is exacerbated by the fact that it is relatively easy to exclude persons, or discharge duties towards persons, under the Housing Acts
3R v Kensington and Chelsea RLBC ex p Kujtim [1999] 4 All ER 161, (1999) 2 CCLR 340.and because, in many areas, housing officers are considerably tougher in their approach than their social services counterparts;
•on the other hand, the courts have increasingly emphasised the need for adults seeking accommodation under social care provisions to demonstrate that their need truly is a social care need,
4R (Mwanza) v Greenwich LBC [2010] EWHC 1462 (Admin), (2010) 13 CCLR 454; R (M) v Slough BC [2008] UKHL 52, (2008) 11 CCLR 733; R (SL) v Westminster CC [2013] UKSC 27, (2013) 16 CCLR 161. whilst adult and children’s social care budgets have come under such pressure that both managers and practitioners simply have to be tougher, within the law, than before;
•at the other end of the process, the courts have tried to balance legitimate grounds for seeking possession, such as rent arrears and neighbour nuisance, against the special difficulties that tenants with needs for care and support may face.
5Akerman-Livingstone v Aster Communities Ltd [2015] UKSC 15, [2015] AC 1399. 20.2The major legal and practical difficulty arises out of the fact that there are large numbers of vulnerable individuals and families who fall between legal stools because:
•they may qualify for assistance under the Housing Act 1996 or the Care Act 2014, but need a different type of provision that is generally made under the enactment under which they qualify;
•they are excluded from assistance under the Housing Act 1996 for immigration reasons or because of having become intentionally homeless, or having refused an offer of ‘suitable accommodation’;
•their needs are insufficient to qualify them under the Care Act 2014 but they have also fallen foul of a decision that they do not have sufficient vulnerability so as to achieve ‘priority need’ under the Housing Act 1996, when nonetheless they are vulnerable and so still need special help.
Housing provision under the Care Act 2014
20.3Section 8 of the Care Act 2014 allows local authorities to, on the face of it, provide any type of accommodation:
How to meet needs
8(1) The following are examples of what may be provided to meet needs under sections 18 to 20–
(a)accommodation in a care home or in premises of some other type;
(b)care and support at home or in the community;
(c)counselling and other types of social work;
(d)goods and facilities; (e) information, advice and advocacy.
(2)The following are examples of the ways in which a local authority may meet needs under sections 18 to 20–
(a)by arranging for a person other than it to provide a service;
(b)by itself providing a service;
(c)by making direct payments.
(3)‘Care home’ has the meaning given by section 3 of the Care Standards Act 2000.
20.4Section 8(1)(a) of the Care Act 2014 plainly encompasses the provision of what might be termed ‘ordinary accommodation’.
20.5On the other hand section 23 of the Care Act 2014 prevents a local authority meeting needs under sections 2 and 18–20 of the Care Act 2014 by doing anything which it or another local authority ‘is required to do under – (a) the Housing Act 1996’:
Exception for provision of housing etc
23(1) A local authority may not meet needs under sections 18 to 20 by doing anything which it or another local authority is required to do under–
(a)the Housing Act 1996, or
(b)any other enactment specified in regulations.
(2)‘Another local authority’ includes a district council for an area in England for which there is also a county council.
(3)For the purposes of its application in relation to the duty in section 2(1) (preventing needs for care and support), this section is to be read as if, in subsection (1), for ‘meet needs under sections 18 to 20’ there were substituted ‘perform the duty under section 2(1)’.
20.6Read out of context, section 23 could mean almost anything:
•at one extreme, it could prevent local authorities ever providing ‘ordinary accommodation’ under the Care Act 2014, since that is a form of provision that local authorities can be required to make under the Housing Act 1996;
•at the other extreme, it could allow local authorities to provide ‘ordinary accommodation’ under the Care Act 2014 whenever they are not under a duty, owed to a person individually, to provide that person with accommodation under the Housing Act 1996.
20.7The simplest solution is that a local authority may provide ordinary accommodation, and any other service within reason, to an adult whom it assesses as needing care and support within the meaning of sections 18 and 19 of the Care Act 2014; and that the exercise or non-exercise of that power is a question for the judgment of the local authority, subject only to the usual public law constraints.
20.8That approach seems to be fit the new statutory scheme whilst remaining connected with long-standing social services practice, endorsed by the courts, to provide ‘ordinary accommodation’, in appropriate cases, to persons who met the statutory criteria for residential accommodation under section 21 of the National Assistance Act 1948, whether or not they happened also to meet the statutory criteria for assistance under the Housing Acts – for example, in the case of young adults with a mental disorder or learning disability, who simply need a certain amount of support and a safety net, in order to occupy ordinary accommodation in the community.
6R (Wahid) v Tower Hamlets LBC [2002] EWCA Civ 287, (2002) 5 CCLR 239.It seems very unlikely that section 23 of the Care Act 2014 was intended to end that beneficial overlap, which seems consistent with the
Care and Support Statutory Guidance which emphasises, at Chapter 10, the importance of the individual’s wishes as to how their care should be delivered and, probably at least as important in this context, the need for local authorities to signpost and broker services, and liaise with the housing department/ housing authority (see paragraphs 10.10–10.26).
20.9The potentially tricky issue is to define what an ‘appropriate case’ would be, under the current legislation.
20.10In
R (SL) v Westminster CC,
7[2013] UKSC 27, (2013) 16 CCLR 161.the Supreme Court held that a person only became entitled to residential accommodation under section 21 of the National Assistance Act 1948 (which imposed a duty to provide residential accommodation ‘for persons aged eighteen or over who by reason of age, illness, disability or any other circumstances are in need of care and attention which is not otherwise available to them’) where the person in question had a need for the sort of care that was normally provided in a home (whether ordinary or specialised) or that would be effectively useless if the applicant had no home.
20.11The initial judicial indication is that the same approach applies under the Care Act 2014, in the sense that a local authority may not provide ‘accommodation’ under section 8 of the Care Act 2014 unless the applicant needs the sort of care that is normally provided in a home (whether ordinary or specialised) or that would be effectively useless if he or she had no home:
R (SG) v Haringey LBC.
8[2015] EWHC 2579 (Admin), (2015) 18 CCLR 444.That may be right, but one could not expect a different answer, from a High Court Judge seeking to make sense of rather disparate materials in a way that gives proper effect to a recent decision of the Supreme Court, albeit in a somewhat different statutory context.
20.12It could be that an appellate court might take a somewhat broader view, of the kind outlined above at para
20.8. On the other hand, the view might be taken that, nowadays, there are many different ways in which ordinary accommodation can be provided to vulnerable persons (see below at paras
20.17–
20.18) and that, as a matter of policy, accommodation under the Care Act 2014 should be reserved for relatively limited classes of case.
20.13Otherwise, because of the provisions of Part 6 of the Housing Act 1996, a local authority plainly may not meet needs under the Care Act 2014 by ‘allocating’ a person social housing (that is, selecting a person to be a secure or introductory tenant of housing accommodation held by them, or some other person, or nominating a person to be an assured tenant of housing accommodation held by a private registered provider of social housing or registered social landlord: section 159 of the Housing Act 1996).
20.14That is because Part 6 of the Housing Act 1996 provides that allocations of social housing are to be made pursuant to each housing authority’s published Housing Allocation Scheme (HAS), drawn by it to reflect local priorities, subject to broad statutory parameters in the Housing Act 1996 and associated regulations.
20.15Otherwise, whilst local authorities may not ‘allocate’ social housing to persons with care needs, otherwise than through their Housing Allocation Scheme, neither section 23 of the Care Act 2014 nor Part 6 of the Housing Act 1996 prevent local authorities discharging their duty under sections 18 to 20 of the Care Act 2014 by providing ‘ordinary accommodation’ by:
•making an allocation to a person who is already a secure or introductory tenant, or an assured tenant of a private registered provider of social housing or a registered social landlord, where the allocation does not involve a ‘transfer’ within section 159(4B), because such allocations are excluded from Part 6 of the Housing Act 1996, by virtue of section 159(4A);
•granting or arranging for non-secure tenancies or licenses of social housing;
•making arrangements with private sector providers for the provision of housing accommodation;
•revising their Housing Allocation Scheme to provide for additional allocations to be made to persons referred by social services for reasons connected with the Care Act 2014.
Housing provision under the Housing Acts
20.16There is nothing to prevent housing authorities from, in appropriate cases:
•providing temporary accommodation to persons with care and support needs under Part 7 of the Housing Act 1996, providing it is ‘suitable accommodation’ for them; or from
•allocating ‘suitable’ social housing to persons with care and support needs under Part 6 of the Housing Act 1996, although the combination of Part 6 of the Housing Act 1996 and section 23 of the Care Act 2014 means that the only lawful method of so doing is to include criteria in the local Housing Allocation Scheme which will have that effect.
In practice, housing authorities do provide accommodation to persons with care and support needs through both these routes, usually in liaison with their social services department/local social services authority. Providing the situation is not exploited so as to finesse or curtail duties owed under the Care Act 2014, this practice seems entirely beneficial.
Housing allocations under the Housing Act 1996
20.18That is consistent with the duty, at section 166A of the Housing Act 1996, to accord preferential treatment within the Housing Allocation Scheme, to members of certain vulnerable groups:
166A(3) As regards priorities, the scheme shall, subject to subsection (4), be framed so as to secure that reasonable preference is given to–
(a)people who are homeless (within the meaning of Part 7);
(b)people who are owed a duty by any local housing authority under section 190(2), 193(2) or 195(2) (or under section 65(2) or 68(2) of the Housing Act 1985) or who are occupying accommodation secured by any such authority under section 192(3);
(c)people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions;
(d)people who need to move on medical or welfare grounds (including any grounds relating to a disability); and
(e)people who need to move to a particular locality in the district of the authority, where failure to meet that need would cause hardship (to themselves or to others).
The scheme may also be framed so as to give additional preference to particular descriptions of people within one or more of paragraphs (a) to (e) (being descriptions of people with urgent housing needs).
The scheme must be framed so as to give additional preference to a person with urgent housing needs who falls within one or more of paragraphs (a) to (e) and who–
(i)is serving in the regular forces and is suffering from a serious injury, illness or disability which is attributable (wholly or partly) to the person’s service,(ii)formerly served in the regular forces,(iii)has recently ceased, or will cease to be entitled, to reside in accommodation provided by the Ministry of Defence following the death of that person’s spouse or civil partner who has served in the regular forces and whose death was attributable (wholly or partly) to that service, or(iv)is serving or has served in the reserve forces and is suffering from a serious injury, illness or disability which is attributable (wholly or partly) to the person’s service.
For this purpose ‘the regular forces’ and ‘the reserve forces’ have the meanings given by section 374 of the Armed Forces Act 2006.
(4)People are to be disregarded for the purposes of subsection (3) if they would not have fallen within paragraph (a) or (b) of that subsection without the local housing authority having had regard to a restricted person (within the meaning of Part 7).
(5)The scheme may contain provision for determining priorities in allocating housing accommodation to people within subsection (3); and the factors which the scheme may allow to be taken into account include–
(a)the financial resources available to a person to meet his housing costs;
(b)any behaviour of a person (or of a member of his household) which affects his suitability to be a tenant;
(c)any local connection (within the meaning of section 199) which exists between a person and the authority’s district.
(6)Subject to subsection (3), the scheme may contain provision about the allocation of particular housing accommodation–
(a)to a person who makes a specific application for that accommodation;
(b)to persons of a particular description (whether or not they are within subsection (3)).
20.19In addition, there is scope within the statutory scheme for housing authorities to allocate social housing to achieve a range of locally desirable objectives:
Including local priorities alongside the statutory reasonable preference categories
4.19 As the House of Lords made clear in the case of R (Ahmad) v Newham LBC, s166A(3) only requires that the people encompassed within that section are given ‘reasonable preference’. It ‘does not require that they should be given absolute priority over everyone else’. This means that an allocation scheme may provide for other factors than those set out in s166A(3) to be taken into account in determining which applicants are to be given preference under a scheme, provided that:
•they do not dominate the scheme, and
•overall, the scheme operates to give reasonable preference to those in the statutory reasonable preference categories over those who are not.
The Secretary of State would encourage authorities to consider the scope to take advantage of this flexibility to meet local needs and local priorities.
4.20 The House of Lords also made clear that, where an allocation scheme complies with the reasonable preference requirements and any other statutory requirements, the courts should be very slow to interfere on the ground of alleged irrationality.
Local lettings policies
4.21 Section 166A(6)(b) of the 1996 Act enables housing authorities to allocate particular accommodation to people of a particular description, whether or not they fall within the reasonable preference categories, provided that overall the authority is able to demonstrate compliance with the requirements of s166A(3). This is the statutory basis for so-called ‘local lettings policies’ which may be used to achieve a wide variety of housing management and policy objectives.
10Allocation of accommodation: guidance for local housing authorities in England (2012), at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/5918/2171391.pdf.20.20In addition, Housing Allocation Schemes must not be discriminatory or drawn up in breach of the public sector equality duty (PSED) (see chapter5).
11R (H) v Ealing LBC [2016] EWHC 841 Admin, [2016] HLR 20.20.21Social housing allocations are governed by Part 6 of the Housing Act 1996, supplemented by delegated legislation and statutory guidance:
•Allocation of Housing (Procedure) Regulations 1997;
•Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006;
•Allocation of Housing and Homelessness (Miscellaneous Provisions) (England) Regulations 2006;
•Allocation of Housing (Reasonable and Additional Preference) Regulations 1997;
•Allocation of Housing and Homelessness (Review Procedures) Regulations 1999;
•Allocation of Housing (Qualification Criteria for Armed Forced) (England) Regulations 2012;
•Homelessness (Suitability of Accommodation) (England) Order 2012;
•Allocation of Housing (Qualification Criteria for Right to Move) (England) Regulations 2015;
20.22In 2009, the House of Lords signalled a more restrained approach, on the part of the courts, to challenges to the content of local authority HAS.
16R (Ahmad) v Newham LBC [2009] UKHL 14, [2009] HLR 31.Assistance for homeless persons under the Housing Act 1996
20.23Assistance for homeless persons is provided under Part 7 of the Housing Act 1996, under which various duties may be owed, in particular the rehousing duty, which is owed to persons who are:
•‘homeless’ (defined at sections 175–178);
•‘eligible’ (in immigration terms, defined at sections 185 and 186);
•in ‘priority need’ (section 189);
•and not ‘intentionally homeless’ (section 190).
20.24The critical provision, the gateway for many homeless persons in need of care and support, is the ‘priority need’ definition, at section 189 of Housing Act 1996:
Priority need for accommodation.
189(1) The following have a priority need for accommodation–
(a)a pregnant woman or a person with whom she resides or might reasonably be expected to reside;
(b)a person with whom dependent children reside or might reasonably be expected to reside;
(c)a person who is vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside;
(d)a person who is homeless or threatened with homelessness as a result of an emergency such as flood, fire or other disaster.
(2)The Secretary of State may by order–
(a)specify further descriptions of persons as having a priority need for accommodation, and
(b)amend or repeal any part of subsection (1).
(3)Before making such an order the Secretary of State shall consult such associations representing relevant authorities, and such other persons, as he considers appropriate.
(4)No such order shall be made unless a draft of it has been approved by resolution of each House of Parliament.
20.25Recently the Supreme Court has signalled a more liberal approach to assessing who falls within section 189(1)(c) of the Housing Act 1996.
17Hotak v Southwark LBC [2015] UKSC 30, [2015] 2 WLR 1341.20.26Part 7 of the Housing Act 1996 is supplemented by delegated legislation and statutory guidance as follows:
•Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006;
•Allocation of Housing and Homelessness (Eligibility) (Wales) Regulations 2014;
•Allocation of Housing and Homelessness (Miscellaneous Provisions) (England) Regulations 2006;
•Allocation of Housing and Homelessness (Review Procedures) Regulations 1997;
•Homeless Persons (Priority Need)(Wales) Order 2001;
•Homelessness (Decisions on Referrals) Order 1998;
•Homelessness (England) Regulations 2000;
•Homelessness (Wales) Regulations 2000;
•Homeless Persons (Priority Need)(England) Order 2001;
•Homelessness (Suitability of Accommodation(England) Order 2012;
•Homelessness (Suitability of Accommodation(Wales) Order 2006;
•Homelessness Code of Guidance for Local Authorities (July 2006);
•Supplementary Guidance on the homelessness changes in the Localism Act 2011 and on the Homelessness (Suitability of Accommodation)(England) Order 2012 (November 2012).
Accommodation through the Local Government Act 2000 and/or the Localism Act 2011 and/or special purpose vehicles
Grants for welfare services
93 (1) The Secretary of State may, with the consent of the Treasury, pay grants to local authorities in England towards expenditure incurred by them […]
(a)in providing, or contributing to the provision of, such welfare services as may be determined by the Secretary of State, or
(b)in connection with any such welfare services.
(2)The National Assembly for Wales may pay grants to local authorities in Wales towards expenditure incurred by them […]
(a)in providing, or contributing to the provision of, such welfare services as may be determined by the Assembly, or
(b)in connection with any such welfare services.
(3)The amount of any grants under this section and the manner of their payment are to be such as may be determined by the Secretary of State or the Assembly (as the case may be).
20.28In addition, as noted above at Chapter 13, Welsh local authorities have a GWP (general well-being power) under sections 1–4 of the Local Government Act 2000 whilst English local authorities have a GPC (general power of competence) under sections 1–8 of the Localism Act 2011, which is wide enough to allow them to provide housing to any individuals or types of individuals who are not statutorily excluded from such provision.
20.29In addition, some local authorities utilise ‘special purpose rental vehicles’ – trading companies set up under section 95 of the Local Government Act 2003 and/or section 1 of the Localism Act 2011 to provide tenancies at affordable rents, but for commercial purposes, outside of their housing revenue account and/or to provide tenancies to members of vulnerable groups, for non-commercial purposes.
Eviction
20.30At the other end of the process, the courts have grappled with ways of factoring into the housing possession process, usually under the Housing Act 1985 (secure tenancies, etc) or the Housing Act 1988 (assured tenancies, etc), the fact that some tenants/occupiers have care and support needs, are especially vulnerable and may be less able to comply with tenancy terms, for disability-related reasons.
20.31That can be done:
•through the requirement, where it exists, that possession should only be ordered when it is ‘
reasonable’ to do so;
19Croydon LBC v Moody (1999) 2 CCLR 92, CA. •through allowing an Article 8 ECHR defence;
20Manchester CC v Pinnock [2010] UKSC 45, [2011] 2 AC 104 (‘64. Sixthly, the suggestions put forward on behalf of the Equality and Human Rights Commission, that proportionality is more likely to be a relevant issue “in respect of occupants who are vulnerable as a result of mental illness, physical or learning disability, poor health or frailty”, and that “the issue may also require the local authority to explain why they are not securing alternative accommodation in such cases” seem to us well made.’). •through allowing a public law defence;
21Shane Barber v Croydon LBC [2010] EWCA Civ 51, [2010] HLR 26; Kay v Lambeth LBC [2006] UKHL 10, [2006] 2 AC 465. •through allowing a defence based on discrimination in breach of the Equality Act 2010.
22Akerman-Livingstone v Aster Communities Ltd [2015] UKSC 15, [2015] 2 WLR 721.